Relist (and hold) watch

Posted Wed, April 4th, 2012 11:13 am by John Elwood

John Elwood reviews Monday’s relisted and held cases.

Sorry. I don’t have the inside scoop on the Court’s health-care discussion at Friday’s Conference. Except to say that Justice Kennedy will be in the majority. But I don’t think that will be news to anyone who has an Internet connection, or subscribes to any publication released in the last week (and I’m including Modern Doghere). I do at least have the scoop on this week’s relists and holds—and when you think about it, that’s almost as good, really.

The lifespans of our relists have been brutally short these last few weeks. True to form, only half (i.e., one) of last week’s two relists remains on the docket. The Court called for the views of the Solicitor General in Tarrant Regional Water District v. Herrmann, 11-889, the dormant Commerce Clause case concerning water from Oklahoma’s portion of the Red River and the Texas citizens who want it; the CVSG means that case will essentially be in a holding pattern for the near term (although as a statistical matter, the odds of a grant go way up). The petitioner in Dorsey v. Louisiana, 11-8470, the case concerning Batson challenges tried in a courtroom with a Confederate flag flying out front, was not so lucky: The Court denied cert. without opinion.

With no new relists to report, we switch over to the hold front. Garcia v. Holder, 11-79, was back at Conference last week after a nearly-four-month hiatus. As we suggested before, Garcia was likely being considered with, and now is likely being held for, the newly granted Moncrieffe v. Holder, 11-702. Both cases raise the same question: Whether a state conviction for possession of an unspecified quantity of marijuana categorically constitutes a felony conviction under federal law (and therefore an “aggravated felony” under federal immigration law), even if the offense could fall within the federal misdemeanor exception for low-level drug offenses. (Goldstein & Russell, P.C., represents Moncrieffe.) Meanwhile, Ramirez v. California, 11-7424, is probably being held for the Eighth Amendment duo Miller v. Alabama, 10-9646,and Jackson v. Arkansas, 10-9647, both of which ask whether sentencing juveniles to life without the possibility of parole constitutes cruel and unusual punishment. Ramirez is a little different: Proving that criminal sentences, like the people, are a little more laid back on the Best Coast, the fifteen-year-old in Ramirez was sentenced to life with the possibility of parole. It would seem to take a pretty broad opinion in those cases to affect the result in Ramirez, but I wouldn’t be too surprised.

Michael J. Astrue, everybody’s favorite Commissioner of Social Security, is back this week in Schafer v. Astrue, 11-824, which is almost certainly being held for Astrue v. Capato, 11-159, argued on March 19, concerning whether a child conceived after the death of a biological parent who cannot inherit from that parent under state intestacy law is nonetheless eligible for child survivor benefits under Title II of the Social Security Act. Finally, and unsurprisingly, we have yet another hold for Dorsey v. United States, 11-5683, and Hill v. United States, 11-5721, meaning the mathematical postulate I put forward last week remains valid. Like Dorsey, Hill, and oh-so-many others, Jordan v. United States, 11-9016, asks whether an amendment to the Fair Sentencing Act reducing the sentencing differential between crack- and powder-cocaine sentences applies retroactively.

That’s all she wrote. Mercifully for us all, the Court is taking next week off. I’ll be back in two weeks when, who knows, there might even be a relist to report. We can dare to dream. Until then, Happy Easter and Chag Sameach!

Thanks to Eric White for yet another masterful job compiling and drafting this update. (Yes. He drafted that line, too.)

Upcoming Oral Arguments

3/31Kimble v. Marvel Enterprises, Inc. Whether the Court should overrule Brulotte v. Thys Co., which held that “a patentee’s use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se”.

4/20Johnson v. United States Whether possession of a short-barreled shotgun is a violent felony, leading to a longer prison term as a career criminal.

4/21McFadden v. United States A federal prosecutor’s duty to prove that a suspect knew that a substance was an illegal substitute for a banned drug.

4/22Horne v. Department of Agriculture The federal government’s duty to pay raisin growers for an order requiring removal of part of a year’s crop from the market to stabilize prices.

On Monday afternoon Justices Anthony Kennedy and Stephen Breyer testified before the House Appropriations Committee. The purpose of the hearing was to discuss the Court’s budget for the next fiscal year and the federal judiciary, but the legislators also took full advantage of the occasion to touch on other topics as well.